work-product protection Archives - TAX CONTROVERSY 360

Kovel Protections Upheld | Government Loses Aggressive Arguments for Waiver of Privilege for Controversy Advice

by McDermott Will & Emery | Nov 12, 2018 | Court Procedure Matters, IRS Guidance, Privilege and Non-Disclosure, Trial Courts, Uncategorized

On October 27, the US District Court for the District of Minnesota issued an opinion in United States v. Adams, No. 0:17-cr-00064-DWF-KMM (D. Minn. Oct. 27, 2018), addressing attorney-client privilege issues relevant to accountants working alongside tax attorneys. The court adopted a narrow, nuanced view of the waiver that applies when the taxpayer discloses an accountant’s work to the Internal Revenue Service (IRS) by filing an amended return.

In Adams, the taxpayer is facing a 17 count superseding indictment in which the government alleges he spearheaded a scheme to defraud investors in two companies and to embezzle corporate funds for his personal benefit. In late 2017, the government added three counts of tax evasion to the indictment, alleging that amended returns the taxpayer filed in late 2011 for the 2008, 2009 and 2010 tax years were willfully false under IRC § 7206(1).

The addition of the tax evasion charges is significant for the government’s arguments for waiver of privilege and work-product protection. It appears that the taxpayer filed the amended returns at issue in late 2011 under advice of counsel, working with the taxpayer’s accountant under a Kovel arrangement. (We have previously discussed the scope of Kovel protections here.) In our experience, filing of amended returns in advance of a criminal investigation or trial is one potential strategy to demonstrate good faith and lack of criminal intent and, if combined with payment, amended returns may have the added benefit of reducing the tax loss at issue in a criminal case. Of course, every case is different, but it appears this may have been the strategy at work in Adams. (more…)

John Doe Intervenes in Virtual Currency Summons Enforcement Case

by Robin L. Greenhouse | Jul 21, 2017 | Court Procedure Matters, IRS Audits, IRS Guidance, Uncategorized

The Internal Revenue Service (IRS) has broad authority under Internal Revenue Code (IRC) Section 7602 to issue administrative summonses to taxpayers and third parties to gather information to ascertain the correctness of any return. If the IRS does not know the identity of the parties whose records are covered by the summons, the IRS may issue a “John Doe” summons only upon receipt of a court order. The court will issue the order if the IRS has satisfied the three criteria provided in IRC Section 7609(f):

The summons relates to the investigation of a particular person or ascertainable group or class of persons,
There is a reasonable basis for believing that such person or group or class of persons may fail or may have failed to comply with any provision of any internal revenue law, and
The information sought to be obtained from the examination of the records (and the identity of the person or persons with respect to whose liability the summons is issued) is not readily available from other sources.

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Ethics in Tax Practice

by McDermott Will & Emery | Nov 21, 2016 | Court Procedure Matters, Privilege and Non-Disclosure, Uncategorized

On November 17, 2016, John Woodruff and Laura Gavioli gave a presentation to the Houston Chapter of the Tax Executives Institute (TEI) regarding the contours of privilege and work-product protection for in-house tax practitioners. Joining them on the panel were Paul Broman of BP and Susan Musch of Sasol. The group addressed potential waiver concerns over the life of a tax case, spanning from the reasons, pre-transaction, that a company may obtain a tax opinion to audit defense. McDermott greatly appreciates its relationship with TEI’s Houston Chapter and the opportunity to speak on these topics, which are of heightened interest in today’s tax enforcement environment.